ATT 1st PrepCom: Prepared and Committed

July 15 2010, 6:59 AM by Øistein Thorsen, Oxfam

By Daniel Mack, Sou da Paz and Convener of the Control Arms alliance NB: This article first appeared in Arms Control Today

From July 12 to 23, UN member states will gather in New York for the first Preparatory Committee (PrepCom) meeting for the arms trade treaty (ATT) negotiating conference, beginning a process slated to deliver a legally binding instrument to regulate international arms transfers in 2012.

This article suggests the main issues on which governments are likely to focus, describes the different viewpoints on these issues, and offers recommendations on the issues on which they should focus, noting that a failure to be thoroughly prepared, ambitious, and committed to a principled treaty could have serious deleterious effects on the ATT process. A strong ATT—the only acceptable ATT from a civil society perspective—demands a strong start to the initial PrepCom.

Seven years ago, only three governments publicly supported the idea of a global, legally binding instrument to regulate international transfers of conventional arms.[1] This month, the overwhelming majority of governments will congregate at the United Nations to begin prenegotiations of such an instrument, which civil society and governments have been discussing for years.

In 2006, seven committed states—Argentina, Australia, Costa Rica, Finland, Japan, Kenya, and the United Kingdom—tabled Resolution 61/89, “Towards an Arms Trade Treaty,” at the UN First Committee. In December of that year, 153 member states voted in favor of the resolution, establishing a 2007 UN secretary-general consultation with all member states followed in 2008 by a Group of Governmental Experts (GGE) examining the “feasibility, scope and parameters” of a legally binding ATT. In 2009 the process was broadened to an Open-Ended Working Group (OEWG) including all UN members, which at the end of that year was molded into the current PrepComs. Notwithstanding this considerable history, the journey is just beginning if an ATT is not to betray its purpose and promise: to diminish the human cost of the poorly regulated arms trade by rendering irresponsible arms transfers illegal.

The two weeks of meetings in New York this month are technically the first and second sessions of the PrepComs, the only formal UN meetings on the ATT until February 2011.[2] This breakdown may result in a thematic or structural division in which the first week would set the groundwork for the second week’s efforts. Some observers fear the first week could be hijacked by skeptical countries filibustering over procedural matters, such as definitions of “consensus” or civil society participation. Nonetheless, as the ATT process has a robust paper trail to draw from (UN First Committee resolutions and reports from a GGE and an OEWG), the road ahead seems somewhat clear.[3] Doubts about the pace of the effort remain.

On the Docket

Much of the debate around an ATT to date has been divided into three categories: feasibility, scope, and parameters.[4] The discussions regarding feasibility have formally been put to rest; whether there will be an ATT is no longer emphasized, but when and how. Nevertheless, a small minority of countries will undoubtedly use the microphone to attempt to resuscitate them. The 2009 OEWG formally reached the important conclusion, albeit obvious to most, that the unregulated trade in conventional arms is a problem that must be addressed by the international community. Still, countries such as China, Egypt, India, Pakistan, Russia, and Venezuela remain unconvinced that an ATT serves their national interests. These countries can reasonably be expected to continue arguing that the world does not need an ATT or that a few more years should be spent discussing it until all assumptions and premises of the treaty are shared by the UN’s 192 members.

Once this potential detour is addressed, and provided procedural debates do not bog down the proceedings, the PrepCom is likely to delve into matters of “substance,” including scope and parameters. Eventually, this debate could be summarized as the kind of arms and types of international transfers that should be regulated and the criteria that national authorities should use to decide, on a case-by-case basis, whether a transfer should be authorized. It remains unclear, however, how these discussions will be structured, that is, how the main leaders of the process will attempt to design the blueprint for the ensuing deliberations and text drafting.[5] These leaders include the seven co-sponsor governments of the ATT resolutions; the new (but mighty) kid on the block, the United States, which changed its long-standing position with the announcement in October 2009 by Secretary of State Hillary Rodham Clinton that it would be formally joining the process; and the able chairman of the process, Roberto García Moritán of Argentina.

At least two competing views seem to have developed among supporter governments: “don’t rock the boat” and “let’s get down to business.” The first group argues that it is best to start with “easy” issues and discussions in order not to alienate any of the most important countries at the outset. The members of this group argue that using the first PrepCom to ensure all countries are “comfortable” is essential to the future of the process. According to this argument, it would be a mistake to push too hard and risk withdrawal from the process by major arms exporters such as Russia and China. Therefore, this line of reasoning goes, the best approach would be to keep deliberations in 2010 to “headlines” or a “skeleton” of the future treaty, rather than delving into specific substantive areas or text. In this view, the initial PrepCom would hopefully conclude with a framework for a future ATT, and noncontroversial items such as standard treaty components,[6] as well as perennial favorites such as the right to self-defense (UN Charter Article 51) and protection of sovereignty, would be the only details discussed.

The second group would note that there is no value in having a weak ATT just to ensure that all countries can sign it or merely for the sake of concluding a diplomatic exercise. Rather, this group argues, the ATT should aim to raise national standards globally so that even the countries unable to subscribe at first to a strong legally binding instrument would eventually sign, ratify, and implement a treaty that actually saves lives. In this view, maintaining a “positive mood in the room” is important, but pales in comparison with the pressing need to make real progress in assembling substantive text on key elements of an ATT, even if this “fast lane” approach inevitably involves some disagreements between states.

Whether wishing to simply assemble an easy-to-agree list of elements for later elaboration or immediately tackling difficult issues, supportive governments can also be divided on the basis their level of preparation and commitment to the ATT process. A minority of governments has invested a noteworthy amount of political capital and time into the process, but a significant contingent of countries, although supportive, is waiting for the first moves of others before establishing its stance.

The disarmament officials of no country have been spared the marathon efforts to prepare for the recently concluded review conference for the nuclear Nonproliferation Treaty—often used as justification for lagging ATT preparation—but some governments have been successful in not allowing the nuclear discussions to derail their commitment to the conventional-weapons process. A small minority of governments has been able to conduct cross-departmental intergovernmental meetings, plan detailed national positions (in some welcome cases including NGOs in the process), or prepare concrete suggestions for a treaty framework or even text. Likewise, some subregional or regional groupings, such as Mercosur in South America, have engaged in collective preparatory discussions, although it remains to be seen whether discrepant views will prevent the development of clearly and strongly defined regional priorities.

Governments’ commitment also covers a broad spectrum. Although an overwhelming majority has supported “an ATT,” mostly through supporting resolutions or voting “yes” at the UN First Committee, a likewise overwhelming majority of that group has acted mostly as silent or lazy supporters of a generic, hypothetical instrument rather than coalescing into a vocal and proactive majority pushing for the highest possible standards to regulate the arms trade. As concrete proposals—whether headlines or text—start to be developed, countries that have held their cards close to the vest may have to unveil their true priorities and positions, showing the world whether their support is genuine or merely rhetorical.

If specific areas of substance emerge in spite of the aforementioned obstacles, it is likely that the themes to be addressed in 2010 will be those many governments deem more “tangible”—scope rather than parameters. At the first PrepCom, the debates on which types of arms and international transfers an ATT would cover are therefore more likely to occur than those regarding the criteria that will be used to define whether a transfer can be authorized. Post-treaty implementation—monitoring, compliance, and verification, which are areas of particular interest to the U.S. government—may be also among the first items to be developed once the ATT’s framework is established.

The Way to an ATT

As states gather for the PrepCom and begin to flesh out their wide spectrum of positions and stances on an ATT, the “world will be watching,” as noted in recent campaign materials from the Control Arms coalition, which spearheads the global civil society movement for a robust ATT.[7] Of course, in addition to closely monitoring the developments, civil society stakeholders are eager to suggest some “driving directions” to governments in order to ensure that the perspectives of those who often witness the human cost of irresponsible arms transfers are incorporated into an ATT. A few of these suggestions, which although personal would likely be supported by civil society engaged on the issue, are offered below.

Every government participating in the July PrepCom must ask, “Why are we here?” and have a clear answer to the question, that is, an understanding of the central purpose of an ATT. That answer must reflect the fact that thousands of people are killed or injured, raped, and forced to flee from their homes every year as a result of irresponsible arms transfers. The poorly regulated global trade in conventional arms and ammunition fuels conflict, poverty, armed crime, terrorism, gender-based violence, and human rights abuses. Therefore, an overwhelming humanitarian imperative must be realized by ATT negotiators. Although essential from a national security perspective, focus must remain on human security; an ATT must protect people, not only states. Governments are urged to recall Article 1 of the UN Charter in addition to Article 51.[8]

Detractors often argue that an ATT is not a disarmament treaty and not a panacea for armed violence. The truth of that statement should not mask the need for a treaty that will make a difference on the ground, with real impact. Thus, an ATT must clearly indicate that its central purpose or objective is to create common international standards for the international transfer of conventional arms in order to reduce and prevent the human cost of irresponsible transfers. An ATT must prevent transfers that contribute to armed conflict, displacement, organized crime, terrorist acts, poverty, and violations of UN arms embargoes and international human rights and humanitarian law. It also must prevent diversion to unauthorized uses or users.

120 Hours to Do What?

The ATT PrepComs have an extremely tight timetable: 120 hours, or four working weeks of six-hour sessions daily, to develop a highly complex international instrument. The first PrepCom sessions this month constitute one-half of the total time available to develop the text before the final treaty negotiation. In order to develop a robust ATT, this time must be used to the fullest effect, which entails significant preparation. Also, a smart schedule and use of intersessional meetings would be helpful in gaining traction on more difficult points before negotiations, by discussing sticking points without the formal procedural constraints of the UN and allowing agreement to emerge, as well as providing more hours for deliberations, even if informal. Governments should follow the “let’s get down to business” approach, tackling difficult points early precisely because they are difficult and need sufficient time to be addressed. In addition to the unforgiving timetable, “fast lane” efforts are essential to respect the sense of urgency demanded by those whose lives have been affected by armed violence. Millions of potential victims cannot afford to wait for a protracted diplomatic process or one that yields a toothless instrument.

Ambition

In previous meetings, some governments have been fond of arguing that an ATT should be constructed on a simple and easy or pragmatic basis, an “ATT light,” not trying to be too complex or ambitious. To other governments and civil society, an ATT provides a historic opportunity to be visionary and strive to deliver something of importance. An ATT must deliver increased human security on the ground and respect the massive efforts and resources already put into the process. Although the following recommendations are “bare minimum” necessities, they may nonetheless prove ambitious for some states. Such states would thus be called on to show the necessary level of ambition.

On all issues of substance, whether they are issues of scope, parameters, or implementation, decision-making should be guided by the principled answer to the initial question of “why are we here?”: to diminish the human cost of the poorly regulated arms trade. The correct decision on any given issue will be the one that best reflects and protects this central purpose. Therefore, an ATT must:

Be comprehensive in scope, covering all types of conventional arms, their ammunition, and parts and components (a list comparable to items already controlled by the majority of states), and all types of international transfers and transactions;

Prevent international transfers of conventional arms on a case-by-case basis if there is substantial risk that these would be used to commit serious violations of international human rights or humanitarian law or undermine socioeconomic development and poverty reduction efforts, among other criteria;[9]

Be drafted with clear and strong language, as even a comprehensive scope and strong criteria can be rendered irrelevant by wording such as “taking into account” or “wherever possible”—diplomatic code for “feel free to ignore.” Rather, provisions should be, for example, “governments shall not authorize transfers if there is substantial risk of serious violations” or similar language; and

Be a preventive rather than a punitive instrument, requiring states to suspend particular transfers when an objective case-by-case analysis by national authorities indicates there is a strong possibility the arms will be used for serious violations rather than preventing states from receiving any conventional arms and ammunition because of previous isolated incidents.[10]

The substantive discussions most likely to occur at the first PrepCom may hit their first pothole if a small minority of countries, reportedly including the United States, follows up on plans to attempt to exclude ammunition, particularly for small arms, from the equipment to be covered by an ATT. Such an exclusion would be completely unacceptable and constitute a maneuver the majority of governments should strongly resist. To put it simply, people do not die of gun wounds, they die of bullet wounds. An ATT without ammunition in its scope would be like a gun without bullets: it would not serve the purpose for which it was designed. Likewise, all types of transfers and transactions should be covered, even if some states may seek to exclude the activities of arms brokers and other intermediaries.

Another potential obstacle during upcoming debates on scope is the seemingly obsessive need to use unhelpful shorthand to discuss the types of equipment an ATT should cover. In previous discussions, governments have used the “7+1” formula of the UN Register of Conventional Arms as a basis for discussion. The “7” refers to the register’s categories of major conventional arms: battle tanks, armored combat vehicles, large-caliber artillery, combat aircraft, attack helicopters, warships, and missiles and missile launchers. The “+1” refers to small arms and light weapons, a category for which the register invites submissions but does not maintain as an official category; a second “+1,” denoting ammunition, produces the designation “7+1+1.”

More importantly, this coverage, whatever it is called, is far from comprehensive enough to be effective in providing human security. An ATT must include all types of conventional military equipment, components, small arms and light weapons, explosives, and ammunition that are currently used for serious violations and abuses. Many of these are not included in the UN Register, rendering it virtually worthless as a benchmark.[11]

Proactive, Inclusive, Transparent

Finally, governments should be proactive, inclusive, and transparent at the PrepCom. As noted above, a silent or lazy majority, even if overwhelming in numbers, will not achieve a worthwhile ATT. Governments must muster the political will and invest political capital; make an ATT a national priority; and be vocal, organize, and become cohesive with other committed governments. In order to achieve a meaningful ATT, states will need to devote significant time, effort, and resources.

Committed governments must respond when somebody who wishes to see the ATT process derailed speaks loudly, defends his government’s position, or strategizes with the small minority that agrees with him. He does not actually represent his grouping, his continent, and perhaps not even his people, but to observers and for the record, it seems those positions are common in the international community. They are not. Supportive states must make themselves heard and should congregate and coordinate to ensure the world knows that their positions are the common ones, supported by the majority of countries and the vast, overwhelming majority of their citizens. An international instrument of this magnitude demands a strong set of concrete proposals from supportive states that are prepared to push a structure and text that will deliver a robust treaty, one that reflects the humanitarian imperative for which an ATT should be striving, one that protects their citizens and those of all other countries.

Finally, an effective ATT will not be achieved behind closed doors. One of the initial debates of the PrepCom will likely be on civil society participation. As noted in the 2009 resolution, governments must decide “on the modalities of attendance of non-governmental organizations,” that is, how civil society will participate in the PrepCom. As in other treaty processes established by the UN General Assembly, such as the conference that created the International Criminal Court, civil society should be granted meaningful participation at the PrepComs and negotiating conference in 2012. Nongovernmental organizations should have access to all formal sessions and documents produced and circulated, as well as the right to circulate documents and speak in plenary sessions. Such a request stems not from a sense of entitlement, although it would be quite ironic, given civil society’s “partial paternity” of the process, to be at the conception but not the birth of an ATT, but from an understanding that civil society involvement is essential for the legitimacy and effectiveness of the PrepCom.

Excluding civil society would threaten the PrepCom’s accountability, transparency, and decision-making process, which would be bereft of valuable information that can enrich the policy debate. Such an exclusion would also threaten the ability to consider transnational viewpoints from stakeholders not representing national positions and the ability to reflect the experiences of those affected by the irresponsible arms trade—all vital to inform the detailed content of the treaty. Regardless of the precise participation “modalities” established, civil society is committed to a principled and robust ATT and will work as constructive critics and partners of states. The ATT will be negotiated by states and is ultimately in the hands of states, but civil society can and wishes to play a supportive role to help ensure that the ATT will be strong enough to prevent irresponsible transfers. Crucially, global civil society will continue to shape the degree of worldwide legitimacy, interest, and support given to an ATT and its eventual implementation.

Conclusion

The PrepCom will see a wide range of views and priorities regarding an ATT even before considering the perspective of civil society, which has been a major force in the trip from “utopia” to UN negotiations. The issues to be discussed by governments at the initial PrepCom present a confluence of arms control, security, human rights, trade, armed violence, sovereignty, development, self-defense, technology, and other issues. In some of these areas, the range of views is dramatic.

The challenge for those shepherding the process is to balance these multiple and seemingly discrepant views into a final product that can actually address the realities on the ground. The worst-case scenario would be to move slowly and ultimately accommodate all views, no matter how out of touch with the overwhelming sense of the international community, into a lowest-common-denominator or toothless instrument that could be ratified by all governments but would make none of their citizens safer. Although certainly not insurmountable, this is tall task, not least because of the urgency and time constraints of the agreed calendar and the uneven levels of government preparation and commitment to the process.

At the initial PrepCom, it should become clear whether a committed mass of governments is actually willing to push for a treaty that will have ethical and robust provisions or whether the diplomatic support to date has been mostly rhetorical and tactical. The PrepCom also presents a crucial opportunity for global civil society to play a supportive role in helping to ensure that the eventual ATT will be strong enough to do its job by addressing poorly regulated and irresponsible international arms transfers, thus helping save lives, prevent abuses, and protect livelihoods.

Daniel Mack is policy and advocacy coordinator for arms control at Instituto Sou da Paz, a Brazilian violence prevention nongovernmental organization (NGO), for which he also serves as convener of the NGO Arms Trade Treaty Steering Committee. He holds a master’s degree in foreign service from Georgetown University.

ENDNOTES

1. The earliest supporters on record were Cambodia, Costa Rica, and Mali.

2. The 2010 PrepComs are tentatively scheduled to be followed by sessions from February 28 to March 4, 2011, and from July 11 to 15, 2011. In 2012 there will be a short PrepCom for procedural matters, followed by a four-week UN negotiating diplomatic conference that should deliver the final text of an ATT.

3. The GGE comprises representatives from 28 countries: Algeria, Argentina, Australia, Brazil, China, Colombia, Costa Rica, Cuba, Egypt, Finland, France, Germany, India, Indonesia, Italy, Japan, Kenya, Mexico, Nigeria, Pakistan, Romania, Russia, South Africa, Spain, Switzerland, Ukraine, the United Kingdom, and the United States. The GGE concluded its work in August 2008 with a consensus report issued after three meetings recommending that “further consideration” be given to an ATT. The exact format of the “consideration” was set by an October 2008 resolution at the UN General Assembly’s First Committee, supported by 147 states, that mandated establishment of an OEWG for all UN member states to consider the elements for a legally binding treaty.

4. The three areas were defined by the initial ATT resolution in 2006.

5. For an account of the United States joining the ATT process in October 2009, see Jeff Abramson, “U.S. Supports Arms Trade Treaty Process,” Arms Control Today, November 2009.

6. Among these standard treaty components could be issues such as signature, ratification, entry into force, depositary and languages, meeting of states-parties, review conference, and dispute mechanism.

7. The Control Arms campaign was launched in October 2003 by Amnesty International, Oxfam, and the International Action Network on Small Arms to use popular mobilization techniques in more than 120 countries to create awareness of and build political commitment toward an ATT. The author’s organization, Instituto Sou da Paz, coordinates the Control Arms campaign in Brazil.

8. Article 1 of the UN Charter states: “The purposes of the United Nations are: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

9. For a more complete list of criteria, see Arms Trade Treaty Steering Committee, “Compilation of Global Principles for Arms Transfers,” 2007. These would require a license or authorization to be refused or suspended where there is a substantial risk that a particular import, export, or international transfer under review will:

violate the UN Charter, including UN arms embargoes;

be used in serious violations of international human rights law;

be used in serious violations of international humanitarian law;

be used to commit acts of genocide or crimes against humanity;

be used to facilitate a terrorist attack;

perpetuate a pattern of violent crime or armed violence, including gender-based violence, or used for the commission of organized crime;

seriously impair poverty reduction and socioeconomic development;

adversely affect regional security and stability, or contribute to the excessive and destabilizing accumulation of arms;

contravene other international, regional or subregional commitments or decisions made or agreements on nonproliferation, small arms and light weapons, arms control and disarmament to which states involved in the import, export, or transfer are a party; or

be diverted from the specifically authorized legal end-use or legal end-user or will be retransferred contrary to the above provisions.

10. For decision-making and criteria application guides, see Amnesty International, “How to Apply Human Rights Standards to Arms Transfer Decisions,” May 2008; International Committee of the Red Cross, “Arms Transfer Decisions: Applying International Humanitarian Law Criteria,” May 2007.

11. See Saferworld, “The Arms Trade Treaty and Military Equipment: The Case for a Comprehensive Scope,” July 2009. For an examination of the absurdity of the situation, see Paul Holtom and Mark Bromley, “The International Arms Trade: Difficult to Define, Measure, and Control,” Arms Control Today, July/August 2010.

The Control Arms campaign is a global civil society alliance that has advocated for a bulletproof Arms Trade Treaty for over a decade. Made up of over 100 charity, nonprofit, and nongovernmental groups throughout the world, Control Arms continues to strive for a world where deadly weapons are kept out of the wrong hands through a regulated arms trade.